Why Charges of Age Discrimination Are On The Rise

The basis of the decision is that you can't do that. When a man named Anthony Brunt was demoted by his employer -- the Water Systems utility in Lexington, Tenn. -- he cried foul.

Sensing that the move had little do with his on-the-job performance, Brunt filed suit alleging that the Lexington utility was engaging in age discrimination. Brunt's case eventually made its way to the federal courts, which ruled in his favor on July 25 for more than $450,000, according to an AP report.

Brunt, who was eventually let go before his case was decided, declined to comment to either the AP or The Jackson Sun. Further calls to his legal representation by AOL Jobs to seek comment, as well as to find out his age, also went unanswered.

But what is known of his story is nevertheless instructive. In claiming that he was the victim of age discrimination, Brunt experienced an injustice that's common to his era; charges of such cases with the U.S. Equal Employment Opportunity Commission have crept up since 2006. The tally of such charges from four years ago was 16,548, while last year saw 23,264.

And the uptick cannot simply be chalked up to a rising numbers of seniors in America as more baby boomers enter late middle age, says the American Association for Retired Persons (AARP).

"When the economy tanks, you definitely see age discrimination suits go up," says Laurie McCann, a senior attorney with the AARP.

In speaking to AOL Jobs, McCann says that it's to be expected that staff cuts start with common rationales for putting the eldest workers at the top of the list, beginning with a perception that older workers are both less productive and likely to retire soon. And while it's often the case that such staffing decisions are more often grounded in stereotypes than actual job performance, McCann notes that a third likely rationale is fundamentally flawed.

"In terms of benefits and insurance, it's a perception that seniors cost more," she says.

Such a view, she notes, fails to recognize a major stipulation of the landmark 1967 Age Discrimination in Employment Act (ADEA). The act, which was signed during the administration of Lyndon Johnson as part of his Great Society program, mandates that companies can only reduce benefits if the cost of services is the same across age brackets. In other words, companies aren't allowed to simply cut back on the benefits they most provide just because their staff is comprised of healthy 24-year-olds. Rather, what is in flux is who is called on to absorb the costs in the event of a claim and, indeed, older workers can be called on to carry the burden themselves.

Not surprisingly, advocates for older workers are just as concerned about that demographic's job loss as for its prospects for re-entry into the workforce.

"The whole tenor of the feeling of older workers is that it's a much more difficult road," says Merrick Rossein, a professor at the CUNY School of Law in New York City, and author of "Employment Discrimination Law and Litigation," in an interview with AOL Jobs.

In fact, unemployment for those over 55 clocked in at 7 percent in June, 2.2 points behind the national average. That number, however, may be skewed by a disproportionate number of potential job seekers in that age bracket who have simply given up. The average duration for their unemployment is 52.4 weeks, as compared to 35.6 weeks for those below 55. (That figure for the above-55 group represents more than a doubling of their duration of unemployment from December 2007).

"This will be a crisis that will be known for how older people were laid off in an economy in transition," Rossein says.

Indeed, in the interest of cutting down on costs amid the worst downturn in a generation, companies have ruffled enough aging feathers to generate that 40.5 percent uptick in charges of age discrimination with the EEOC since 2006. But as glaring as that figure is, the AARP's McCann says that the most significant figure of all is a different one altogether. Of all the charges presented to them, the EEOC is only capable of filing suit on .05 percent.

"The EEOC is underfunded and understaffed," she says. "We must rely on private citizens to bring suits. And it is obviously very expensive for any individual to go through that process. So that means not enough is being done."

Advocates for older workers also note that recent Supreme Court decisions have only amplified the challenge of seeking protections in the workplace.

In 2009, the high court affirmed an Appeals Court's decision to reverse a lower court's ruling in favor of Jack Gross, who had sued FBL Financial Service arguing that a reassignment was a de facto demotion put into place because of age discrimination.

The 5-4 ruling heightened the burden for proving age discrimination to the level of a "but for" standard, meaning age must be demonstrated to have been a deciding factor. Reacting to the ruling, an editorial in TheNew York Times referred to the standard as an "ultrahigh hurdle."

Writing for the court, Supreme Court Justice Clarence Thomas grounded the ruling in the original text of ADEA.

"Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor," he wrote for the slim majority.

Observers have noted that gender and race now receive greater protection as compared to age. Both of those categories are spelled out in Title VII of the 1964 Civil Rights Act, which Thomas alluded to in his opinion.

The Gross decision attracted the ire of many progressives. Plans to counteract the ruling through Congress were launched, but were placed on hold amid congressional feuding over the debt, according to the AARP.

"We are at a time where the courts are not particularly sympathetic," says Rossein. "And this Supreme Court is the most pro-business since Roosevelt was in office."